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Coss v. Caliber Home Loans, Inc.

United States District Court, D. Arizona

June 8, 2018

Anthony Coss, Plaintiff,
v.
Caliber Home Loans, Inc./Fidelity; Nationstar Mortgage, LLC; and Does 1-10, Defendants.

          ORDER

          Cindy K. Jorgenson United States District Judge

         Pending before the Court are the Motion to Dismiss (Doc. 18) filed by Nationstar Mortgage LLC (“Nationstar”), the Motion to Dismiss (Doc. 22) filed by Caliber Home Loans Incorporated (“Caliber”), and the Motion to Dismiss Party Tiffany & Bosco, P.A. and David Cowles for Insufficient Service of Process (Doc. 36) filed by Tiffany & Bosco PA (“Tiffany & Bosco”). Plaintiff Anthony Coss (“Coss”) has filed responses (Docs. 25, 26 and 38) and Defendants have filed replies (Doc. 27 and 28). The Court declines to set this matter for oral argument. See LRCiv 7.2(f); 27A Fed.Proc., L.Ed. § 62:361 (June 2018) ("A district court generally is not required to hold a hearing or oral argument before ruling on a motion.")

         I. Procedural History

         On December 22, 2016, this Court dismissed the original complaint for failure to state a claim. Claims for a violation of the Real Estate Settlement Procedures Act (Count I), wrongful foreclosure (Count II), declaratory action (Count III), request to vacate/void notice of trustee's sale (Count VIII), predatory lending practice (Count IX), and overstating the amount owed to reinstate (Count X) were dismissed with prejudice. Breach of contract (Count IV), breach of duty of good faith and fair dealing (Count V), quiet title and slander of title (Count VI), and intentional interference of contract relations (Count VII) were dismissed without prejudice. On June 13, 2017, this Court accepted Coss's First Amended Complaint (“FAC”). The FAC alleges the following claims:

1. Count I: Declaratory Judgment
2. Count II: Breach of Contract
3. Count III: Breach of the Duty of Good Faith and Fair Dealing
4. Count IV: Quiet Title Under A.R.S. § 12-1101, et seq. and A.R.S. §33-420
5. Count V: Negligence Per Se
6. Count VI: Fair Debt Collection Practices Act
7. Count VII: Cancellation of Trustee's Sale
8. Count VIII: Intentional Interference with Contractual Relations

         Nationwide and Caliber have filed Motions to Dismiss. Additionally, Tiffany & Bosco has filed a Motion to Dismiss Party for Insufficient Service of Process.

         II. Complaint and Plausibility Pleading Standard

         As the Court previously summarized, a complaint is to contain a "short and plain statement of the claim showing that the pleader is entitled to relief[.]" Fed. R.Civ.P. 8(a). Nonetheless, a complaint must set forth a set of facts that serves to put defendants on notice as to the nature and basis of the claim(s). For a complaint to survive a motion to dismiss, the non-conclusory “factual content, ” and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief. Moss v. U.S. Secret Service, 572 F.3d 962 (9th Cir. 2009); Telesaurus VPC, LLC. v. Power, 623 F.3d 998, 1003 (9th Cir. 2010).

         When a court is considering a motion to dismiss, allegations that are mere conclusions are not entitled to the assumption of truth if unsupported by factual allegations that allow the court "to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 663-64 (2009). This Court must take as true all allegations of material fact and construe them in the light most favorable to Coss. See Cervantes v. United States, 330 F.3d 1186, 1187 (9th Cir. 2003).

         If a court determines that dismissal is appropriate, a plaintiff must be given at least one chance to amend a complaint when a more carefully drafted complaint might state a claim. Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991). Here, Coss has already been afforded an opportunity to submit a more carefully drafted complaint.

         III. Underlying Conclusions of Coss

         Underlying a number of Coss's claims are his assertions that the separation and securitization of the note and the deed of trust makes them unenforceable and that the assignments of the mortgage loan were invalid. However, the “splitting” of the note and the deed of trust does not make nonjudicial foreclosure provisions in a deed of trust unenforceable. See, e.g., In re Mortg. Electronic Registration Sys., Inc., 754 F.3d 772, 784 (9th Cir. 2014) (deed of trust does not necessarily need to be attached to an underlying note for a trustee to foreclose on the security interest that secures the notes' debt); see also Buchna v. Bank of Am., NA, 478 Fed.Appx. 425, 425-26 (9th Cir. 2012) (argument that nonjudicial foreclosure provisions in a deed of trust were unenforceable because the note and deed of ...


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